Not long after Mother’s Day, working mothers will finally be given the gift of the right to fair treatment and accommodations for pregnancy, childbirth, nursing, and related health conditions. Two major federal laws recently went into effect to provide greater expansion into the rights of pregnant and nursing workers: The PUMP for Nursing Mothers Act (“PUMP Act”) and the Pregnancy Workers Fairness Act (“PWFA”). Employers and employees alike need to take note of these new laws and their requirements to ensure workers’ rights are not impeded on.
What are the New Requirements?
The PUMP Act is a part of the Fair Labor Standards Act (“FLSA”), and as such applies to employers of all sizes that are otherwise covered by the FLSA. Under the PUMP Act and FLSA, employers are required to provide reasonable break time for an employee to express breast milk for their nursing child for up to one year after the child’s birth each time the employee has need to express. During this break time, the employee must be either: (i) completely relieved of work duties OR (ii) compensated for the time as hours worked, including for overtime hours. Employers must compensate for break times in the same manner as they do for other employee breaks. For example, if an employer already offers a paid break time to all employees and a nursing employee uses that time to express their breast milk, then that time must equally be paid.
Additionally, under the PUMP Act, employers need to provide employees space to express, and that space needs to be shielded from view, free from intrusion from co-workers and public, needs to be a functional space for pumping milk (meaning place to sit, flat surface to pump, electrical outlet, sinks nearby, and must have a space to store milk), and CANNOT be a bathroom. Employers with less than 50 total employees can avoid the PUMP Act requirements if they can show that the break time and space requirements would impose an undue hardship. Employers with 50 or more employees, however, cannot avoid the requirements. Consequences for failing to comply with the PUMP Act can be costly for employers, as the PUMP Act expands the remedies available for violations.
The PWFA applies to all federal, state, and local employers, employment agencies, labor organizations, AND all private employers who employ 15 or more employees. The PWFA serves to bridge a gap between current requirements of the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act to afford employees greater protections when they are pregnant, give birth, or have related medical conditions. The PWFA requires employers to provide “reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.” While what constitutes a “reasonable accommodation” will depend on the facts of each situation, some accommodations can look like light duty, working from home, longer or additional breaks, leave etc. For those familiar with the ADA, this language may seem familiar, but don’t be fooled, the requirements of the PWFA include some unique expansions to what constitutes a “qualified employee” to provide even greater protection. In the PWFA setting, an employee who cannot perform essential functions of the job, remains “qualified,” when the inability is temporary, performance can occur in the near future, or the inability can be reasonably accommodated.
Some other keys things to keep in mind with the PWFA are that employers cannot force an employee to accept an unrequested accommodation, cannot force an employee out on leave if there is another accommodation available, and employers cannot retaliate or coerce an employee for requesting accommodation or opposing practices which violate the PWFA.
When Do these Requirements Start?
The PUMP Act began on April 28, 2023, and the PWFA just went into effect on June 27, 2023, so employers and employees alike should be on alert for handling pregnancy, pregnancy-related conditions, and nursing. Our skilled team and employment experts at OVB Law & Consulting, S.C. can help you navigate these new laws and rights for both employers and employees. Contact us today to schedule a consultation if you have concerns about the PUMP Act, the PWFA, or any of the rights or obligations thereunder.
